Citation NR: 9704759
Decision Date: 02/11/97 Archive Date: 02/19/97
DOCKET NO. 95-20 241 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for a low back
disorder.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for a duodenal ulcer.
3. Entitlement to service connection for defective hearing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. R. King, Associate Counsel
INTRODUCTION
The appellant served on active duty from August 1964 to
August 1967.
These matters are before the Board of Veterans’ Appeals
(Board) on appeal from a January 1995 decision of the
Department of Veterans’ Affairs (VA) Regional Office (RO)
located in Denver, Colorado, which found that new and
material evidence had not been submitted to reopen the
appellant’s claim for service connection for a low back
disorder, a duodenal ulcer, and for defective hearing.
The claims for service connection for a back condition and
for an ulcer were denied by the RO in December 1983. By this
rating determination, the RO awarded service connection for
otitis media. The ulcer and back claims were again
considered by the RO in October 1990, and it was found that
the appellant had not presented new and material evidence to
reopen these claims. A claim for service connection for
defective hearing was denied by this rating action.
The RO issued a May 1996 supplemental statement of the case
in which it was found that the claim for defective hearing
should be characterized as one for service connection.
During testimony presented at an October 1996 hearing before
a member of the Board, the appellant indicated that his
service connected otitis media is more symptomatic than is
contemplated by the currently assigned noncompensable
evaluation. Inasmuch as this issue has not been certified
for appellate review, it is referred to the RO for
appropriate development.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred in finding that he
has not submitted new and material evidence to reopen his
claim for service connection for a back disorder. He avers
that he sustained an inservice injury of the low back in
Baumholder, Germany in 1965, and that he suffers from a
chronic back disorder as a result. The appellant also
maintains that the duodenal ulcer symptoms from which he
currently suffers had their origin in service. He avers that
an inservice incidence of passing and vomiting blood was the
onset of a chronic digestive tract disorder for which service
connection should be granted. Finally, the appellant
maintains that service connection should be granted for
defective hearing because he suffered from otitis media in
service, which he believes caused his current hearing loss.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not
submitted new and material evidence to reopen a claim for
service connection for a low back disorder. The Board finds
that the appellant has submitted new and material evidence to
reopen a claim for service connection for a duodenal ulcer.
The Board also finds that the preponderance of the evidence
is against the appellant’s claim for service connection for
defective hearing.
FINDINGS OF FACT
1. All evidence necessary for the equitable determination of
the appellant’s claims has been received by the RO.
2. The claims for service connection for a back condition and
for an ulcer were denied by the RO in December 1983, and
again in October 1990, and a timely appeal of this decision
was not filed.
3. The evidence submitted since the time of the December
1983 and October 1990 rating determinations consists of the
appellant’s testimony, and private and VA clinical documents.
4. As to the claim for service connection for a low back
disorder, the additional evidence received is redundant and
cumulative in nature. The evidence is not relevant and
probative of the issues at hand and does not establish a
reasonable possibility of a change in outcome of the claim
for service connection for a back disability.
5. As to the claim for service connection for a duodenal
ulcer, the additional evidence received is relevant and
probative of the issues at hand and establishes a reasonable
possibility of a change in outcome of the claim for service
connection.
6. The appellant’s hearing was normal on separation from
active duty and a chronic hearing disability is not shown to
be of service origin.
CONCLUSIONS OF LAW
1. The 1990 rating decision which denied service connection
for a low back disability is final. New and material
evidence sufficient to reopen a claim for service connection
has not been presented. 38 U.S.C.A. §§ 5107, 5108, 7105
(West 1991); 38 C.F.R. §§ 3.104, 3.105, 3.156, 20.302,
20.1103 (1995).
2. The 1983 rating decision which denied service connection
for a duodenal ulcer is reopened. New and material evidence
sufficient to reopen a claim for service connection has been
presented. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991);
38 C.F.R. §§ 3.104, 3.105, 3.156, 20.302, 20.1103 (1995).
3. Bilateral hearing loss was not incurred in service.
38 U.S.C.A. § 1110, 5107 (West 1991); 38 C.F.R. § 3.303,
3.385 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As to the appellant’s effort to reopen claims for service
connection for a low back disorder and for a duodenal ulcer,
the Board finds that these claims are well grounded within
the meaning of 38 U.S.C.A. 5107 (a). That is, the Board
finds that the appellant has presented claims which are
plausible. The Board is also satisfied that all relevant
facts have been properly developed, and that no further
development is necessary in order to comply with the duty to
assist as mandated by 38 U.S.C.A. § 5107 (a). Similarly, the
claim for service connection for defective hearing of both
ears has been found to be well-grounded and properly
developed within the meaning of 38 U.S.C.A. 5107 (a).
New and Material Evidence for a Low Back Disorder
The evidence which was of record at the time the RO
considered this claim in 1983 includes service medical
records which reflect that the appellant was placed on
physical profile in May 1965 after being treated for
complaints of low back pain on several occasions in March and
April 1965. The appellant indicated that he experienced low
back pain after lifting a heavy object. Treatment records
dated in October 1965 reflect that the appellant reported a
recurrence of low back pain. The appellant was hospitalized,
and it was reported that the appellant had had back pain for
several months and that he lost the feeling in his right leg.
The record reflects that he had a recurrence of symptoms in
December 1965.
The appellant underwent a March 1966 inservice examination in
which he reported that his back gave him “every [very] little
trouble anymore.” He reported that he had injured his back
in March 1965. On clinical evaluation, the appellant’s spine
and lower extremities were found to be normal. The report of
the appellant’s March 1967 separation examination reflects
that he reported his health as “good.” On evaluation, the
examiner noted that the appellant had 2 scars of the lumbar
region and that the appellant had recurrent lumbo-sacral
strain.
Post service evidence includes a private medical statement,
dated in November 1976, which reflects that the appellant was
treated for acute and chronic back pain. The appellant also
underwent an October 1983 VA examination in which he gave a
history of having sustained a low back injury while working
for the Colorado Department of Highways. It was indicated
that the appellant was hospitalized for 52 days for a
herniated lumbar disk and injury to the cervical spine while
lifting a heavy weight.
The examiner elicited a detailed statement, which included
the fact that the appellant stated that he had had low back
symptoms for two or three weeks each month prior to the time
of his industrial accident. On physical examination, the
appellant was found to have mild tenderness over the lumbar
and sacral spines with mild to moderate tenderness over the
lower lumbar paraspinous joint regions. The diagnosis was
status post back injury with residual symptoms of low back
pain and radiculopathy.
The RO considered this evidence, and in December 1983,
rendered a decision which denied the appellant’s claim for a
back disorder. A timely appeal was not received, and the
denial became final in December 1984.
The appellant attempted to reopen his claim in August 1990.
The RO issued an October 1990 rating action in which it was
determined that the appellant had not submitted new and
material evidence to reopen his claims for service
connection. The appellant did not file any additional
statement or evidence in response to this communication.
The appellant submitted a November 1994 statement which
contained his contention that his back condition was worse.
He indicated that he had received treatment at a local VA
medical center and that records of this treatment should be
obtained to support the reopening of his claim. In January
1995, the RO issued a letter indicating that the appellant
was required to submit new and material evidence in order to
reopen his claim.
The appellant’s representative submitted a January 1995
Notice of Disagreement in which it was alleged that the
appellant had been treated in Saarbrucken, Germany in 1966
for low back strain, and that the RO should obtain the
records of this treatment to assist the appellant in the
pursuit of his claim.
The appellate process is initiated by a notice of
disagreement and completed by a substantive appeal after a
statement of the case is furnished. Except in the case of
simultaneously contested claims, a claimant, or his or her
representative, must file a notice of disagreement with a
determination of the agency of original jurisdiction within
one year from the date that the agency mails notice of the
determination to him or her. 38 U.S.C.A. § 7105(a)(b)(1)
(West 1991); 38 C.F.R. § 20.302 (1995). In this case, no
notice of disagreement was filed in accordance with
applicable regulations and the claim will not thereafter be
reopened or allowed, except on the submission of new and
material evidence. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R.
§ 3.104 (1995).
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156
(1995).
The United States Court of Veterans Appeals has set forth a
two-step analysis to be applied when a claimant seeks to
reopen a claim. The Board must first determine whether the
evidence is new and material and, if so, the case will be
considered to be reopened, and the claim must then be
evaluated in light of the entire evidence of record, both new
and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
New evidence means more than evidence that was not previously
of record. New evidence is not merely cumulative of evidence
previously considered. Colvin v. Derwinski, 1 Vet.App. 171,
174 (1991). In order to be material, the new evidence must
be relevant and probative of the disputed issue; and there
must also be a reasonable possibility that the new evidence,
when considered in conjunction with all the evidence of
record, would change the outcome. Smith v. Derwinski,
1 Vet.App. 178 (1991).
The applicable criteria provide that service connection may
be granted for disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110.
Moreover, service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
After a review of the claims folder, it is found that new and
material evidence has not been submitted to reopen a claim
for service connection for a back injury.
In response to the representative’s allegation, the RO sought
to obtain additional service medical records from the
National Personnel Records Center (NPRC). By communications
dated in June and August 1995, the RO requested that any
additional service medical records be forwarded. The NPRC
responded by indicating that there were no additional records
pertaining to the appellant.
Additionally, a November 1965 letter was associated with the
claims folder in April 1996, which reflects that the
appellant’s commanding officer observed his back problems and
that he requested that a final determination be made
concerning his ability to perform his assigned duties.
The appellant presented personal testimony before a member of
the Board at the RO in November 1996. He stated that his
back problems began after lifting a heavy object while
working in the motor pool. He stated that the injury caused
him to have continuing symptoms throughout the remainder of
his period of active duty. He testified that following
service, he worked as an ironworker and then for the Colorado
Department of Highways until 1990. He indicated that he
sustained a serious back injury in 1976, which caused an
aggravation of the symptoms he suffered from during service.
He asserted that the symptoms included back pain, and
numbness of the legs.
While the appellant’s representative alleges that the
appellant has submitted new and material evidence, after a
review of the claims folder, the Board is unable to concur.
The RO considered the above evidence in 1983, and found that
there was no evidence that the appellant’s inservice
complaints were indicative of a chronic back disorder. Some
of the appellant’s arguments are new in so far as they were
not previously recounted to the VA. However, his statements
are not material in that they could not change the outcome of
the prior denial. Assuming, without deciding, that the
appellant’s arguments are relevant and probative, there is no
reasonable possibility that the additional evidence, when
viewed in the context of all the evidence, both new and old,
would change the outcome.
Furthermore, the medical evidence contained in the claims
folder does not show that there is a relationship between the
appellant’s period of service and a back disorder present
today. The appellant has asserted that a back disorder is
causally related to active service. However, a lay assertion
of medical causation cannot serve as the predicate to reopen
a claim under 38 U.S.C.A. § 5108, Moray v. Brown, 5 Vet.App.
211 (1993), since a lay witness is not capable of offering
probative evidence that requires medical knowledge. Espiritu
v. Derwinski, 2 Vet.App. 492, 494 (1992). Accordingly, the
Board concludes that the appellant has not submitted new and
material evidence sufficient to warrant reopening his claim.
Because the additional evidence does not support the
contention that the appellant has a back disorder which was
incurred in service, there is no reasonable possibility that
the additional evidence received since December 1983, when
viewed in the context of all of the evidence, both old and
new, would change the outcome of the prior decision. Thus,
the evidence presented since the December 1983 decision is
not new and material, and the appellant’s claim may not be
reopened. Accordingly, this decision which denied service
connection for a back disorder is final and the appeal is
denied.
New and Material Evidence for a Duodenal Ulcer
The evidence that was considered at the time of the December
1983 denial of service connection for a duodenal ulcer
includes service medical records, post service private and VA
medical records, and the appellant’s personal testimony which
was proffered before a member of the Board in November 1996.
The service medical records reflects that the appellant was
treated for complaints of gastric pain in January 1964. His
stool was found to have occult blood. The appellant reported
having consulted with a physician in 1959, at which time his
condition responded to treatment and x-ray studies were
interpreted as showing no positive findings for ulcer
craters. The diagnosis was probable duodenitis. Later
records reflect that the appellant was treated on several
occasions for possible duodenitis.
At the time of a March 1966 service department examination,
the appellant reported having experienced a recent loss of
weight, and having coughed up blood, but he gave a negative
response to the question of whether he had had stomach
trouble. On clinical examination, his abdomen was found to
be normal. At the time of the appellant’s March 1967
separation examination, the appellant did not report having
had stomach trouble, but the physician who performed the
clinical evaluation indicated that the appellant had had
cramps which were physiological in nature.
The appellant underwent an October 1983 VA medical
examination. He gave a history of having had peptic ulcer
disease as early as 1965, and stated that he had vomited
blood an had blood in the stool with epigastric pain. The
appellant stated that he had episodes of heartburn, dyspepsia
and black stools approximately one or two times a year.
On physical examination, the appellant’s abdomen was soft,
with mild tenderness and no rebound. The appellant’s stool
was tested and found to be negative for occult blood. X-ray
studies of the upper gastrointestinal tract were interpreted
as showing normal findings. The diagnosis was peptic ulcer
disease, with current symptoms of gastritis, without current
radiologic evidence of active peptic ulcer disease.
The RO considered this evidence at the time of its December
1983 denial. The appellant did not file a timely appeal from
this decision. Such decision on the merits of the claim
therefore became final. See Glynn v. Brown, 6 Vet.App. 523,
528-29 (1994) (citing 38 U.S.C.A. § 5108 (1991); Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993); McGinnis v. Brown, 4
Vet.App. 239, 244 (1993)).
The appellate process is initiated by a notice of
disagreement and completed by a substantive appeal after a
statement of the case is furnished. Except in the case of
simultaneously contested claims, a claimant, or his or her
representative, must file a notice of disagreement with a
determination of the agency of original jurisdiction within
one year from the date that the agency mails notice of the
determination to him or her. 38 U.S.C.A. § 7105(a)(b)(1)
(West 1991); 38 C.F.R. § 20.302 (1995). In this case, no
notice of disagreement was filed in accordance with
applicable regulations and the claim will not thereafter be
reopened or allowed, except on the submission of new and
material evidence. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R.
§ 3.104 (1995).
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156
(1995).
The United States Court of Veterans Appeals has set forth a
two-step analysis to be applied when a claimant seeks to
reopen a claim. The Board must first determine whether the
evidence is new and material and, if so, the case will be
considered to be reopened, and the claim must then be
evaluated in light of the entire evidence of record, both new
and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
New evidence means more than evidence that was not previously
of record. New evidence is not merely cumulative of evidence
previously considered. Colvin v. Derwinski, 1 Vet.App. 171,
174 (1991). In order to be material, the new evidence must
be relevant and probative of the disputed issue; and there
must also be a reasonable possibility that the new evidence,
when considered in conjunction with all the evidence of
record, would change the outcome. Smith v. Derwinski, 1
Vet.App. 178 (1991).
The applicable criteria provide that service connection may
be granted for disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110.
Moreover, service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
The evidence that has been added to the record since the time
of the 1983 denial includes records of a January 1996
emergency hospital admission, which took place after the
appellant had a loss of consciousness, and symptoms of
gastrointestinal bleeding. He underwent two endoscopic
procedures during this month, and it was noted that the
appellant continued to have continued evidence of stomach
infection with the Helicobacter Pylori bacteria.
A November 1996 statement from the appellant’s private
physician is of record which reflects his opinion that the
appellant’s peptic ulcer disease was related to infection
with the Helicobacter pylori bacteria. he indicated that he
reviewed the appellant’s military medical records. It was
stated that recent treatments had resulted in an improvement
of symptoms, but also that the prior incidence of peptic
ulcer and gastrointestinal bleeding in 1965 were probably
related to the acquiring of the Helicobacter pylori under
crowded military conditions. Noting that the discovery of
the relationship between Helicobacter and peptic ulcer
disease was very recent, it was his opinion that the
appellant’s peptic ulcer disease was initiated in the
military and continued throughout his adult life.
Based on a review of this document, in relation to the other
evidence and material in the claims folder, the Board finds
that the appellant has submitted new and material evidence
and the claim for service connection for a duodenal ulcer is
reopened.
The appellant clearly had upper gastrointestinal symptoms
while on active duty and peptic ulcer disease was suspected
during that time. Although it was not confirmed by
diagnostic study during service or during the years
immediately thereafter, reasonable doubt is created by the
private physician’s statement concerning the inception of the
disability, coupled with other information in the record
suggesting a long-standing history of the pathology in
question.
It is therefore the Board's judgment that the evidence is
evenly divided as to whether the appellant’s upper
gastrointestinal symptoms during service represented the
initial onset of his peptic ulcer disease diagnosed some
years after service. It follows that the benefit of the
doubt is given to him and, therefore, service connection for
peptic ulcer disease is granted. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
Service Connection for Bilateral Defective Hearing
Hearing status will be considered a disability for the
purposes of service connection when the auditory thresholds
in any of the frequencies of 500, 1,000, 2,000, 3,000, and
4,000 Hertz is 40 decibels or greater; the auditory
thresholds for at least three of these frequencies are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R.
§ 3.385 (1996)
Service connection has been granted for otitis media, and the
appellant’s service records reflect that he was treated on
several occasions for complaints of earache and pain. The
appellant’s service separation examination, dated in March
1967, reflects that the appellant’s hearing was normal.
Post service findings include a record of a May 1982 private
audiological evaluation which revealed the following pure
tone threshold levels:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
x
50
LEFT
15
5
5
x
45
Speech audiometry was not performed as a part of this
examination. The appellant’s medical history was recorded,
and it was noted that the appellant’s profession as a
steelworker caused him to be exposed to high levels of noise,
as did his work with the Highway Department.
The appellant underwent a VA audiological examination in
October 1983 which revealed the following pure tone threshold
levels:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
10
x
50
LEFT
15
5
5
x
45
Speech audiometry revealed speech recognition ability of 100
percent in the right ear and of 92 in the left ear.
On ear, nose and throat examination, the appellant was found
to have sensorineural hearing loss, nasopharyngeal lesion of
unknown etiology, constant tinnitus and otitis media,
resolved.
The appellant underwent a September 1990 audiological
evaluation which revealed the following pure tone thresholds:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
15
35
65
LEFT
30
20
15
25
60
At the time the RO considered this evidence in October 1990,
it was found that the hearing loss demonstrated in the above
evaluation was not present at the time of separation from
active duty or within one year afterward. Moreover, it was
found that the appellant’s hearing loss was not attributable
to his service connected otitis media.
VA clinical records dated in December 1993 reflect that the
appellant presented with complaints of increasing hearing
difficulty. A January 1994 VA audiometric evaluation is of
record which reflects the following pure tone threshold
levels:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
15
25
50
60
LEFT
20
10
5
20
55
The appellant’s medical history was noted, including the fact
that the appellant was exposed to excessive amounts of noise
both in his military occupation and as a civilian.
The appellant was seen at the VA audiology clinic on several
occasions between January and September 1994. A right ear
hearing aid was fitted and installed.
The appellant presented testimony before a member of the
Board in November 1996. He indicated that his hearing loss
began as a result of events which took place in service.
The appellant’s hearing loss is not shown to have been
present for more than 10 years following separation from
active duty. The first evidence of hearing loss is that of
1983. While the Board finds that the appellant has made
credible statements as to having had otitis media in service
as a likely etiology of his current hearing loss, the
appellant is a layperson who, without the appropriate medical
training and knowledge, is not competent to state a
conclusion as to the etiology of his hearing loss. Espiritu
v. Derwinski, 2 Vet.App. 492, 494 (1992). Causative factors
of a disease amount to a medical question; only a physician's
opinion would be competent evidence. Grottveit v. Brown, 5
Vet.App. 91 (1993).
The clinical evidence does show that the appellant has been
exposed to excessive amounts of noise during service, and
after service, and it is found that the normal findings on
separation and the length of time which intervened between
the appellant’s period of active duty and his first
complaints of hearing loss is too great to warrant a finding
that the hearing loss which he currently experiences is due
to service.
Without continuity of symptomatology from the time of
separation, or competent evidence showing a causal
relationship between service and a current disability, the
preponderance of the evidence is found to be against the
appellant’s claim.
ORDER
New and material evidence not having been submitted to reopen
a claim for service connection for a low back disorder, the
prior denial is final and the benefit sought remains denied.
Having presented new and material evidence to reopen a claim
for service connection for a duodenal ulcer, the appellant’s
claim was reopened, and the benefit is granted on appeal.
The claim for service connection for defective hearing is
denied.
V. L. JORDAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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